Existing regulations inadequate to protect data on WhatsApp and Facebook: Indian Govt

The Modi government on Monday conceded that existing regulations to protect data was inadequate to deal with over-the-top applications such as WhatsApp, leaving scope for the Supreme Court to intervene in the issue.

Facebook, however, resisted any such attempt vehemently, arguing that Facebook and its sister concern WhatsApp were already covered under the existing privacy regulations in India.

The Facebook counsel urged the court not to interfere in private contractual matters. However, his stand was contradicted by the Central government which argued that the rules were inadequate to deal with over the counter applications such as WhatsApp.

Senior advocate Vibha Dutt Makhija said that the existing regulations only cover licensed telecom operators, not unlicensed ones such as WhatsApp. She said any privacy clause by WhatsApp has to conform to the existing regulations. Senior advocate KK Venugopal, arguing against court intervention of any kind in what he described was a private contractual matter, also argued that interested parties cannot file a PIL on this issue.

He also argued that WhatsApp services were encrypted and there was no provision under which Whatsapp could peruse any data shared by A with B. Everything is encrypted, he said. He also claimed that any data stored or transferred to WhatsApp cannot be shared with third parties without consent of the person.

Lawyer for the petitioners, who have challenged WhatsApp's new revised privacy policy post its acquisition by Facebook, said that the issue did not involve privacy at all. In any case, privacy was a legal right in this country, even if not a fundamental right.

The lawyer pegged her case main ly on the citizens right to communicate freely under article 19(1)(a) which she claimed was under stress and strain. WhatsApp and Facebook have been slapped with class action suits in other jurisdictions, lawyer Madhavi Divan said.She was arguing in absence of senior advocate Harish Salve who's away in the ICJ at the Hague arguing India's case against death penalty awarded to Khulbhushan Jadhav.

Technology has far outpaced regulation, she argued. “In any case, we are not before the regulator but the highest court.“ The Union counsel said that the court in this case must balance the right to privacy with the right to access to information.

Facebook also claimed that WhatsApp has revolutionised the entire communication scene. At the close of the day the bench, which is hearing whether it should interfere with this case at all, wondered if a privacy law which was at odds with Indian laws can stand.

“Are these unconscionable? Can they exist?“ Justice Dipak Misra, who's heading a five-judge bench in the case, wondered. Should the court not then lay down norms which will regulate the issue for the time being, he wondered.

Arguments in the case will continue on Tuesday when WhatsApp argues it case through senior advocate Kapil Sibal.